In an appeal by Awesome Broadcasting Sdn Bhd (Appellant) against the High Court’s decision dismissing the Appellant’s application for injunctive reliefs against MYTV Broadcasting Sdn Bhd (Respondent), the Appellant argued that the Respondent, being in a monopolistic or dominant position, had discriminated against the Appellant in terms of rates chargeable for providing Digital Terrestrial Television Services (‘DTTS’). The Court of Appeal dismissed the appeal on 8.4.2024 and affirmed the High Court’s decision, reported as Awesome Broadcasting Sdn Bhd v MVTY Broadcasting Sdn Bhd [2024] MLJU 938.
The Court of Appeal agreed with the High Court’s grounds on why injunctive reliefs must be refused. Firstly, the Appellant’s complaints against the Respondent (which form the very subject matter of the suit) were escalated to the Malaysian Communication and Multimedia Commission (‘MCMC’), being the statutory regulator under the Communications and Multimedia Act 1998 (‘Act’). The MCMC had investigated and found the complaints to be unsubstantiated. The Court of Appeal held that the Appellant ought to have pursued the domestic statutory remedy of appealing the MCMC’s decision to the Appeal Tribunal under the Act (which the Appellant only did subsequent to the High Court’s decision) and awaited the outcome of the appeal before filing legal action (which is limited only to judicial review).
Secondly, the Court of Appeal agreed with the High Court’s finding that the Appellant’s failure to add MCMC as a party is fatal. The Court of Appeal held that in the context of an injunction application, the issue of serious question to be tried is not a stand-alone concept as it is intrinsically and inextricably linked to the question of whether all the relevant and necessary parties are before the Court. Given that the MCMC had already rejected the Appellant’s complaints against the Respondent as unsubstantiated and had given its approval to the Respondent to suspend the DTTS due to the Appellant’s default in payments, the injunctive reliefs sought by the Appellant would result in the MCMC’s decision and approval for suspension being cast aside or put in suspended animation. The injunction would effectively be a suspension or dilution of MCMC’s functions as regulator under the Act. The Court of Appeal held that no injunction should be granted without the presence of MCMC, a statutory regulator, whose decision is directly under scrutiny in the suit.
* Our Kelvin Seet Wan Nam and Celine Lim Tze Hui were part of the legal team representing the Respondent.
